IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.No.140 of 2000 Bank of Maharashtra No.603 Mount Road, Madras 6 rep. By its Branch Manager, K.Vairamani ... Appellant Vs. 1.M/s.B.M.Steels Private Ltd., Proprietor, M/s.B.M.Overseas Corporation, 96, Coral Merchant Street, Madras-1. 2.Mukund L.Bagree 3.Mrs.Asha Bagree ... Respondents Prayer: Appeal filed under Order XXXVI Rule 1 of the O.S. Rules and Clause 15 of the Letters Patent Appeal against the judgment and decree of the learned Single Judge of this Court dated 21.1.1995 made in C.S.No.49 of 1993. For Appellant : Mr.V.Bhiman for M/s.Sampathkumar Associates For Respondents : No appearance JUDGMENT
M.VENUGOPAL,J.
O.S.A.No.140 of 2000 is filed by the appellant/ plaintiff as against the Judgment and Decree passed by the learned Single Judge dated 21.01.1995 in dismissing the suit without costs in C.S.No.49 of 1993. The appellant/plaintiff has filed a suit against the respondents/defendants 1 to 3 jointly and severally praying for a decree for an amount of Rs.2,16,601.32 with interest at 24.75% p.a. with quarterly rests under Section 34 of Civil Procedure Code and for costs. The respondents/defendants 1 to 3 even though they were served, they did not file their written statements and they were set exparte.
2.Before the learned Single Judge in C.S.No.49 of 1993 on the side of appellant/plaintiff/Bank, Alamelurajan, Manager was examined as P.W.1 and Exs.P.1 to P.4 were marked. The learned Single Judge has come to the conclusion that when once the huge amount of Rs.3,00,000/- was given to the first respondent/first defendant as loan, he was unable to understand as to why pro-note was not obtained from the first respondent/first defendant and that P.W.1 kept silent over the matter and not explained anything and dismissed the suit on 21.01.1995.
3.Aggrieved against the judgment and decree passed by the learned Single Judge in C.S.No.49 of 1993 dated 21.01.1995, the plaintiff/Bank has preferred the present OSA.
4.According to the learned counsel for the appellant/plaintiff/Bank, the learned Single Judge erred in coming to the conclusion that the promissory note is the important document for any loan and that in reality Ex.P.2 Agreement for Term Loan dated 16.12.1989 for Rs.1,29,490.50 is not required to be registered under the Registration Act and that when the respondents/defendants have not disputed the claim made in the plaint and when they remained exparte, the learned Single Judge should have passed a decree as prayed for and these factors were not taken into consideration by the learned Single Judge which has resulted in miscarriage of justice and therefore, prays for allowing the appeal.
5.It is the specific case of the appellant/plaintiff Bank that at the request of first respondent/appellant and on the guarantee of 2nd and 3rd respondents/defendants, the appellant granted a packing credit facility of Rs.3,00,000/- on 13.01.1980 and towards the packing credit loan as on 16.12.1989 a sum of Rs.1,29,490.50 was due and on the request of first respondent/first defendant and on the guarantee of 2nd and 3rd respondents/defendants, the packing credit outstanding was converted into a term loan repayable in installments of Rs.5,000/- per month from December 1989.
6.In Ex.P.1 agreement for term loan dated 16.12.1989 executed by the first defendant/first respondent in favour of appellant/plaintiff/Bank for Rs.1,29,490.50, it is inter alia mentioned that ‘by converting the packing credit outstanding as on 30.09.1989’ and the 2nd and 3rd respondents /defendants have signed as guarantors. Ex.P.2, dated 16.12.1989 agreement for term loan between the first respondent/first defendant and the appellant/plaintiff/Bank in respect of Rs.1,29,490.50 for the purpose of conversion of overdue packing credit into term loan. Ex.P.3 is the letter of guarantee dated 16.12.1989 executed by 2nd and 3rd respondents/defendants in favour of appellant/plaintiff/Bank for the conversion of overdue packing credit into a term loan of Rs.1,29,490.50. Ex.P.4 is the statement of account in respect of term loan of first respondent/first defendant.
7.We are of the view that when the respondents/ defendants 1 to 3 have not disputed the claim of the appellant/plaintiff/Bank, it is not open to the learned Single Judge to observe in the judgment dated 21.01.1995 in C.S.No.49 of 1993 to the effect that ‘the primary document viz., pro-note is absent’ in the case on hand and that for any loan given in favour of the defendant by the plaintiff Bank, the primary document is the pro-note”. No doubt the burden of proving the suit claim is on the appellant/ plaintiff/Bank. Suffice it to point out that it is an accepted principle that a person who seeks the aid of law must first prove his case, because in the nature of things a negative is more difficult to establish than the affirmative. As a matter of fact, in civil action other than the matrimonial causes, the well established rule is that an uncontested matter may be established by a minimum proof and a contested issue may be established by a balance of probability.
8.As far as the present case is concerned on behalf of the appellant/plaintiff/Bank, the Manager P.W.1, Alamelurajan was examined and Exs.P.1 to P.4 were marked.
9.In the light of foregoing discussions and on consideration of available material evidence and documents on record and taking note of the facts and circumstances of the case, we are of the view that the appellant/plaintiff/Bank has proved its claim in the suit and in that view, we are inclined to interfere with the judgment and decree passed by the learned Single Judge in C.S.No.49 of 1993 dated 21.01.1995 in dismissing the suit and accordingly, set aside the said judgment and decree in furtherance of substantial cause of justice and we hold that the appellant/plaintiff/Bank is entitled for the suit claim as prayed for in the plaint.
10.With these observations, the OSA shall stand disposed of. The appellant/plaintiff/Bank is entitled for costs both in suit as well as in the present appeal as per rules.
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